Document Type: 
Document Number (FOIA) /ESDN (CREST): 
Release Decision: 
Original Classification: 
Document Page Count: 
Document Creation Date: 
December 22, 2016
Document Release Date: 
February 27, 2012
Sequence Number: 
Case Number: 
Publication Date: 
February 24, 1986
Content Type: 
PDF icon CIA-RDP90-00965R000403710025-3.pdf208.83 KB
Declassified in Part - Sanitized Copy Approved for Release 2012/02/28: CIA-RDP90-00965R000403710025-3 WASHINGTON POST Vii, .. .. .. `t, 24 February 1986 High Court Disputed In CIA Secrecy- Case .'eholar Traces l:arir Curb on Igrnrv / n eer By George Lardner Jr. Washugttmt Post Staff Writer Last year the Supreme C6urt gave the CIA absolute authority to keep all of its sources of information secret, even if the sources are not confidential and even if the infor- -mation is not classified. Writing for a 7-to-2 majority in CIA v. Sims et at., Chief Justice Warren E. Burger declared that Congress had been quite "plain" about the matter when it created the CIA in 1947 and that the "legislative history" clearly showed that the CIA director had been given "very broad authority to protect all sources of information from disclosure." Now it appears that Burger's opinion was based on a shaky line of reasoning indeed. There is no "leg- islative history" behind the provi- sion the high court so roundly em- braced-in fact, no indication that Congress ever debated or discussed the matter. And what history there is outside congressional records in- dicates that the provision in ques- tion was an anti-CIA restriction de- vised 41 years ago to keep the new kid on the intelligence community block from popping off about a very narrow set of secrets. The scholarly detective work supporting those findings was done by Thomas F. Troy, a highly re- spected, retired CIA historian who has been, for the past four years, editor of a bimonthly newsletter and book review, the "Foreign In- telligence Literary Scene." Troy, it should be emphasized, is no bleeding-heart critic of the Cen- tral Intelligence Agency. He was as delighted with the high court's de . cision as the CIA was. It's just that he can't. abide bad history, as he makes clear in the latest edition of his newsletter. The controversy goes back to congressional enactment of the Na- tional Security Act of 1947, which established the CIA. The new agen- cy was assigned "to correlate and evaluate intelligence relating to the national security, and provide for the appropriate dissemination of such intelligence within the govern- ment"-with three restrictions. The first was the so-called anti- Gestapo clause, providing that the agency "shall have no police ... or internal security functions." The second reassured the other intel- ligence agencies of the government, the Army's and Navy's especially, that they could continue their work. The last proviso stated that "the director of central intelligence shall be responsible for protecting intel- ligence sources and methods from unauthorized disclosure." Now jump ahead to 1977. The Freedom of Information Act had re- cently been strengthened; indigna- tion was still high in some quarters about congressionally exposed ex- cesses by the intelligence commu- nity. Two men, Washington attorney John C. Sims and Sidney Wolfe, di- rector of the Public Citizen Health Research Group, sued under FOIA for the names of individuals and in- stitutions that had done research for the CIA's MK/ULTRA Project. Financed from 1953 to 1966 in re- sponse to Soviet and Chinese brain- washing tactics, it eventally extend- ed to at least 80 universities, re- search foundations and similar in- stitutions. It also became notorious for having produced, as Chief Jus- tice Burger noted, some "untoward results," including the deaths of at least two unwitting individuals giv- en dangerous drugs such as LSD. The CIA refused to supply the re- quested information, saying it was required under the 1947 law to "protect intelligence sources and methods." The agency's lawyers took the broadest possible posi- tion-that an "intelligence source" was any source of information at all, including even an article from, say, The Washington Post or .the Lon- don Sunday Times. - The U.S. Court of Appeals here disagreed and formulated its own definition, one that would have re- quired much of the information in the case to be released. The names could still have been kept secret if the CIA had chosen to classify them on grounds that their disclosure would damage the national security. But the CIA refused, looking for a showdown on the "sources and methods" clause. The case reached the Supreme Court, which handed the agency a complete victory. It rejected the ap- pellate court's definition and came up with its own, even going so far, as Trov points out, to label it "the ing the CIA such "sweeping power" and talking at another point of the "plain statutory language." Despite all that rhetoric, Troy notes, neither Burger "nor anyone else cited one scintilla of evidence that any congressman, any commit- tee or any caucus-or anybody any- where-ever thought or said any- thing about the words ['sources and methods') ... Congress never gave those words the time of day." In fact, the "sources and meth- ods" proviso was concocted in early 1945 following joint military discus- sions in which Army and Navy of- ficials were opposed to any new in- telligence agency. Troy says that when they recognized the inevita- bility of having to share information with "the new, untried, distrusted CIA," they decided to cogcentrate on keeping their special secrets safe. According to Troy's research, Rear Adm. Joseph R. Redman, then-director of naval communica- tions and a man said to be "jealously intent" upon maintaining his turf, devised the formula in a Jan. 8, 1945, memo to a planning group called the Joint Strategic Survey Committee. Redman's office was in- volved in the wartime business of intercepting, decoding and dissem- inating enemy radio communica- tions (comint), and, Troy says, that is what the admiral wanted to pro- tect. He took his cue from a June 1944 military study that, in sug- gesting legislation to counter dam- aging "comint" leaks, recommended that specific references to "radio in- telligence" be avoided and broad "cover" language used in its place. So was born the phrase "sources and methods." To comint experts, Troy. notes, tpe word sources" referred to par- ticular kinds of intercepts and thus, the Japanese army, navy, and air force were so many "sources" of in- telligence. Similarly, "methods" re- ferred to code books, ciphers and the like. I The Joint Chiefs of Staff incor- Declassified in Part - Sanitized Copy Approved for Release 2012/02/28: CIA-RDP90-00965R000403710025-3 Declassified in Part - Sanitized Copy Approved for Release 2012/02/28: CIA-RDP90-00965R000403710025-3 Ot WARREN E. BURGER ... Congress was "plain" on subject porated the idea in an overall plan that they approved Sept. 18, 1945. It provided for the sharing of mil- itary secrets with the new agency, and in the next breath, made the CIA responsible "for fully protect- ing intelligence sources and meth- ods which, due to their nature,.have a direct and highly important bear- ing on military operations." Simply put, Troy says, "the phrase was im- posed upon- the new CIA by a U.S. military fearful that the new agency might compromise comint." The language was later abbrevi- ated, evidently by military drafts- men, and finally enacted by Con- gress in 1947, without discussion, without debate. "Knowing no history and reading only words, the 'Supreme Court came up with a theoretically plau- sible but historically untenable view of 'sources and methods,' " Troy concludes. "What the court would have us believe is that an alert, all-seeing Congress, worried about our intel- ligence secrets, gave CIA, entrusted CIA, helped CIA and vested in CIA what CIA needed to carry out its mission-namely, virtually unlim- ited power to protect all sources, no matter how commonplace and pub- lic-even newspapers, public li- braries, road maps and telephone books .... What the court failed to learn is that the phrase came from ... a body of people who simply did not want a CIA...." The court's ruling, of course, will remain in force, bad history not- withstanding. The law is what the Supreme Court says it is. But per- haps a new corollary can be added: on issues involving intelligence, the law may be what the CIA tells the Supreme Court it is. Declassified in Part - Sanitized Copy Approved for Release 2012/02/28: CIA-RDP90-00965R000403710025-3